Hawaii-2011-SR89-Amended

WHEREAS, the goal of police investigation in Hawaii is to apprehend the person or persons responsible for committing a crime; and

WHEREAS, recent studies have shown, however, that traditional eyewitness identification procedures may lead to faulty eyewitness identifications; and

WHEREAS, studies have also shown that the criminal justice system can significantly decrease the rate of erroneous eyewitness identifications by implementing modern identification procedures that would also increase the ability of police and prosecutors to convict the guilty and protect our communities; and

WHEREAS, the National Institute of Justice recommends the adoption of new policies and procedures that are readily available and have been proven effective in other jurisdictions; and

WHEREAS, the rate of erroneous eyewitness identification procedures may be reduced by a number of new eyewitness identification procedures such as:

(1) Ensuring, when practicable, that the investigator administering a lineup procedure is a person who is not aware which person in the lineup is suspected as the perpetrator of the offense, and, when it is not practicable for the investigator to be a person who is unaware which person in the lineup is suspected as the perpetrator of the offense, that the:

(A) Lineup is presented simultaneously, not sequentially; and

(B) Investigator states in writing the reason why the presentation of the lineup was not made by a person who was not aware which person in the photo lineup or live lineup was suspected as the perpetrator of the offense;

(2) The eyewitness is instructed prior to the identification procedure that the perpetrator may not be among the persons in the photo lineup or the live lineup and that the eyewitness should not feel compelled to make an identification;

(3) If a live lineup or photo lineup is conducted in sequence rather than simultaneously:

(A) Each photograph or person is viewed one at a time;

(B) The photographs or persons are displayed in random order;

(C) The eyewitness is given as much time as needed to make a decision about each photograph or person before moving to the next one; and

(D) All photographs or persons are shown to the eyewitness, even if an identification is made before all have been viewed;

(4) The photo lineup or live lineup is composed so that the fillers generally fit the description of the person suspected as the perpetrator and, in the case of a photo lineup, so that the photograph of the person suspected as the perpetrator resembles the perpetrator's appearance at the time of the offense and does not unduly stand out;

(5) If the eyewitness has previously viewed a photo lineup or live lineup in connection with the identification of another person suspected of involvement in the offense, the fillers in the lineup in which the person suspected as the perpetrator participates are different from the fillers used in any prior lineups;

(6) At least five fillers are included in the photo lineup and at least four fillers are included in the live lineup, in addition to the person suspected as the perpetrator;

(7) In a photo lineup, no writing or information concerning any previous arrest of the person suspected as the perpetrator is visible to the eyewitness;

(8) In a live lineup, any identification actions, such as speaking or making gestures or other movements, are performed by all lineup participants;

(9) In a live lineup, all lineup participants are out of the view of the eyewitness at the beginning of the identification procedure;

(10) The person suspected as the perpetrator is the only suspected perpetrator included in the identification procedure;

(11) Nothing is said to the eyewitness regarding the position in the photo lineup or the live lineup of the person suspected as the perpetrator, except as otherwise provided in paragraph (2);

(12) Nothing is said to the eyewitness that might influence the eyewitness's selection of the person suspected as the perpetrator;

(13) If the eyewitness identifies a person as the perpetrator, the investigator seeks, in the eyewitness's own words, the eyewitness's confidence level that any person identified in the lineup is the suspect;

(14) If the eyewitness identifies a person as the perpetrator, the eyewitness is not provided any information concerning the person prior to obtaining the eyewitness's statement that the eyewitness is certain of the selection; and

(15) A written record of the identification procedure is made that includes the following information:

(A) All results indicating identification or the inability to identify a person as the perpetrator obtained during the identification procedure, signed by the eyewitness, and including the eyewitness's own words regarding how certain the eyewitness is of the selection;

(B) The names of all persons present at the identification procedure;

(D) In a live or photo lineup where the subjects were presented sequentially as opposed to simultaneously, the order in which the photographs or persons were displayed to the eyewitness;

(E) In a photo lineup, the photographs themselves, and identification information and the sources of all photographs used; and

(F) In a live lineup, a photo or other visual recording of the lineup that includes all persons who participated in the lineup; and

WHEREAS, these new identification procedures could help maximize fairness and justice, provide Hawaii's citizens with greater protections against faulty identifications, and assist police agencies with the capture of the perpetrators of crime in our community; now, therefore,

BE IT RESOLVED by the Senate of the Twenty-sixth Legislature of the State of Hawaii, Regular Session of 2011, that the Attorney General and various state and county law enforcement agencies are encouraged to adopt new eyewitness identification procedures as outlined above to decrease the rate of erroneous eyewitness identifications; and

BE IT FURTHER RESOLVED that the criminal investigations conducted by state law enforcement agencies shall be in accordance with the newest and best practices available for eyewitness identification; and

BE IT FURTHER RESOLVED that certified copies of this Resolution be transmitted to the Governor; Attorney General; and the Mayors, Police Chiefs, and Prosecuting Attorneys of the City and County of Honolulu, County of Kauai, County of Maui, and County of Hawaii.

Report Title:

Eye Witness Testimony; Procedures; Attorney General; Police

THE SENATE	S.R. NO.	89
TWENTY-SIXTH LEGISLATURE, 2011		S.D. 1
STATE OF HAWAII